PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 18-2226

_____________

RUSSELL HESS, III 

v.

COMMISSIONER SOCIAL SECURITY,

 Appellant 

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 5-17-cv-01223)

District Judge: Hon. Wendy Beetlestone

_______________

Argued

January 24, 2019

Before: JORDAN, KRAUSE, and ROTH, Circuit Judges.

(Filed: July 30, 2019)

_______________
2

Jordana Cooper [ARGUED]

M. Jared Littman

Social Security Administration

Office of General Counsel SSA/OGC/Region III

300 Spring Garden Street – 6

th Fl.

P.O. Box 41777

Philadelphia, PA 19123

 Counsel for Appellant

Christopher J. Marzzacco

Thomas F. Meister [ARGUED]

Marzzacco Niven & Associates

1909 N. Front Street

2

nd Fl., Ste. 1

Harrisburg, PA 17102

 Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

This is a case about form and substance in decisions 

about eligibility for social security benefits. The Appellee, 

Russell Hess, III, invites us to give supremacy to form. While 

form is not irrelevant in the scripted analytical steps called for

when determining if someone is disabled, Hess’s invitation 

would lead to the hidebound circumstance in which an

Administrative Law Judge (“ALJ”) would have to “chant every 

magic word correctly” or an otherwise thorough and wellreasoned opinion “would have to be remanded[.]” United 

States v. Hickman, 991 F.2d 1110, 1115 (3d Cir. 1993) (Roth, 
3

J., concurring in part and dissenting in part). The law makes 

no such demand. Cf. Biestek v. Berryhill, 139 S. Ct. 1148, 1157 

(2019) (“Where Biestek goes wrong, at bottom, is in pressing 

for a categorical rule[.] ... The inquiry, as is usually true in 

determining the substantiality of evidence, is case-by-case.”).

The ALJ who ruled on Hess’s application for social 

security disability benefits concluded that Hess had “moderate

difficulties” in “concentration, persistence or pace,” but the 

ALJ offered a detailed explanation for why she believed those 

difficulties were not serious and why Hess was nevertheless

capable of performing simple tasks. (App. at 32.) Based on 

that analysis, she found that Hess was “limited to jobs requiring 

understanding, remembering, and carrying out only simple 

instructions and making only simple work-related decisions[.]”

(App. at 33-34.) In a series of hypothetical questions meant to 

include Hess’s limitations, she asked a vocational expert 

whether there were jobs in the national economy available to 

someone with those limitations. The expert said there were. 

The ALJ thus decided that Hess was not disabled and rejected 

his claim for benefits. 

Hess then filed this lawsuit challenging the ALJ’s 

decision. The District Court determined that the ALJ had erred 

because, in the limitations she described in her hypothetical 

questions to the vocational expert, she failed to include or 

account for her finding that Hess had “moderate” difficulties

in “concentration, persistence, or pace.” Accordingly, the 

Court ordered the case remanded to the ALJ. 

The government now appeals. It argues that an ALJ’s 

statement of a limitation confining a person to “simple 

tasks” – like the limitation statement at issue here – is
4

permissible after a finding of “moderate” difficulties in 

“concentration, persistence, or pace,” if the ALJ offers a “valid 

explanation” for it. According to the government, the 

explanation given by the ALJ in this case was “valid,” and the 

District Court failed to give it due consideration. We agree 

and, for the reasons that follow, will remand the case to the 

District Court with instructions to enter judgment for the 

government.

I. BACKGROUND

A. The Social Security Disability Determination

Methodology

Social security cases can be complex, in part because of 

the labyrinthine regulatory structure that governs them. The

matter before us involves the part of that structure controlling

disability determinations.

The Social Security Administration, working through 

ALJs, decides whether a claimant is disabled by following a 

now familiar five-step analysis. 20 C.F.R. §§ 404.1520(a)(4), 

416.920(a)(4) (2016).

1

 The burden of proof is on the claimant 

at all steps except step five, where the burden is on the 

Commissioner of Social Security. Smith v. Comm’r of Soc. 

Sec., 631 F.3d 632, 634 (3d Cir. 2010). The analysis proceeds 

as follows:

 

1

In this opinion, we cite to the edition of the Code of 

Federal Regulations in force at the time of the ALJ’s decision

in this case. There have been changes to social security

regulations since that time, but those changes do not affect our 

analysis, and neither party contends that they should. 
5

At step one, the ALJ determines whether the claimant is 

performing “substantial gainful activity[.]” 20 C.F.R. 

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If he is, he is not 

disabled. Id. Otherwise, the ALJ moves on to step two.

At step two, the ALJ considers whether the claimant has 

any “severe medically determinable physical or mental 

impairment” that meets certain regulatory requirements. Id.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A “severe

impairment” is one that “significantly limits [the claimant’s] 

physical or mental ability to do basic work activities[.]” Id.

§§ 404.1520(c), 416.920(c). If the claimant lacks such an 

impairment, he is not disabled. Id. §§ 404.1520(a)(4)(ii), 

416.920(a)(4)(ii). If he has such an impairment, the ALJ 

moves on to step three.

At step three, the ALJ decides “whether the claimant’s 

impairments meet or equal the requirements of an impairment 

listed in the regulations[.]” Smith, 631 F.3d at 634. If the 

claimant’s impairments do, he is disabled. 20 C.F.R. 

§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If they do not, the 

ALJ moves on to step four.

At step four, the ALJ assesses the claimant’s “residual 

functional capacity” (“RFC”) and whether he can perform his 

“past relevant work.”

2

 Id. §§ 404.1520(a)(4)(iv), 

 

2 There is some ambiguity in the case law as to whether 

RFC is assessed at step four or at the end of step three. 

Compare Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010) 

(“Before moving to step four, the ALJ must determine a 

claimant’s residual functional capacity[.]”), with Moon v. 
6

416.920(a)(4)(iv). A claimant’s “[RFC] is the most [he] can 

still do despite [his] limitations.” Id. §§ 404.1545(a)(1), 

416.945(a)(1). If the claimant can perform his past relevant 

work despite his limitations, he is not disabled. Id.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If he cannot, the 

ALJ moves on to step five.

At step five, the ALJ examines whether the claimant 

“can make an adjustment to other work[,]” considering his 

“[RFC,] ... age, education, and work experience[.]” Id.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That examination

typically involves “one or more hypothetical questions posed 

by the ALJ to [a] vocational expert.” Podedworny v. Harris, 

745 F.2d 210, 218 (3d Cir. 1984). If the claimant can make an 

adjustment to other work, he is not disabled. 20 C.F.R. 

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If he cannot, he is 

disabled.

When, as in this instance, mental impairments are at 

issue, additional inquiries are layered on top of the basic fivestep disability analysis. Id. §§ 404.1520a(a), 416.920a(a). An 

ALJ assesses mental impairments in the following way.

 

Colvin, 763 F.3d 718, 720 (7th Cir. 2014) (“[T]he ALJ was 

required to determine [the claimant’s] ‘residual functional 

capacity’ at step four.”). The ALJ treated it as an intermediate 

step between steps three and four. (See infra n.5.) We 

acknowledge that the social security regulations state that, 

“[b]efore [the ALJ] go[es] from step three to step four, [he] 

assess[es] [the claimant’s] residual functional capacity.” 20 

C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). But, because we find 

it simpler to consider the RFC assessment with step four, we 

will treat the RFC assessment as part of step four.
7

As part of step two of the disability analysis, the ALJ 

decides whether the claimant has any “medically determinable 

mental impairment(s).” Id. §§ 404.1520a(b)(1), 

416.920a(b)(1); see also id. §§ 404.1520(a)(4)(ii), 

416.920(a)(4)(ii) (providing that, at step two, the ALJ 

determines whether the claimant has “a severe medically 

determinable physical or mental impairment”). Then, as part 

of that same step and also step three of the disability analysis, 

the ALJ determines “the degree of functional limitation 

resulting from the impairment(s)[.]” Id. §§ 404.1520a(b)(2),

416.920a(b)(2); see also id. §§ 404.1520a(d), 416.920a(d),

404.1520(a)(4)(ii)-(iii), 416.920(a)(4)(ii)-(iii) (explaining that

the ALJ uses “the degree of functional limitation” in assessing 

“the severity of [the claimant’s] mental impairment(s)[,]” 

which is considered at steps two and three). The ALJ does so 

in “four broad functional areas ... : Activities of daily living; 

social functioning; concentration, persistence, or pace; and 

episodes of decompensation.” Id. §§ 404.1520a(c)(3), 

416.920a(c)(3). The first three of those areas are rated on a 

“five-point scale: None, mild, moderate, marked, and 

extreme.” Id. §§ 404.1520a(c)(4), 416.920a(c)(4). The fourth 

is rated on a scale of: “None, one or two, three, four or more.” 

Id. 

The ALJ uses that degree rating in “determin[ing] the 

severity of [the] mental impairment(s)[,]” which is considered 

at steps two and three. Id. §§ 404.1520a(d), 416.920a(d); see 

also id. §§ 404.1520(a)(4)(ii)-(iii), 416.920(a)(4)(ii)-(iii)

(stating that, at steps two and three, the ALJ “consider[s] the 

medical severity of [the claimant’s] impairment(s)”). 

“If ... the degree of [the claimant’s] limitation in the first three 

functional areas [is] ‘none’ or ‘mild’ and ‘none’ in the fourth 
8

area, [the ALJ] will generally conclude that [the claimant’s] 

impairment(s) is not severe, unless the evidence otherwise 

indicates that there is more than a minimal limitation in [his] 

ability to do basic work activities.” Id. §§ 404.1520a(d)(1), 

416.920a(d)(1) (citation omitted). 

At step three, if the ALJ has found that a mental 

impairment is severe, he “then determine[s] if it meets or is 

equivalent in severity to a listed mental disorder.” Id.

§§ 404.1520a(d)(2), 416.920a(d)(2); see also id.

§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii) (explaining that, at 

step three, the ALJ determines whether the claimant has “an 

impairment(s) that meets or equals” a listed impairment). That 

analysis is done “by comparing the medical findings about [the 

claimant’s] impairment(s) and the rating of the degree of 

functional limitation to the criteria of the appropriate listed 

mental disorder.” Id. §§ 404.1520a(d)(2), 416.920a(d)(2). 

For example, the claimant may have the equivalent of a listed 

impairment if, inter alia, he has at least two of “1. Marked 

restriction of activities of daily living; or 2. Marked difficulties 

in maintaining social functioning; or 3. Marked difficulties in 

maintaining concentration, persistence, or pace; or 4. Repeated 

episodes of decompensation, each of extended duration[.]” Id.

Pt. 404, Subpt. P, App. 1. 

Finally, to complete steps four and five of the disability 

analysis, if the ALJ has found that the claimant does not have 

a listed impairment or its equivalent, the ALJ “will then assess 

[the claimant’s mental RFC].” Id. §§ 404.1520a(d)(3), 

416.920a(d)(3); see also id. §§ 404.1520(a)(4)(iv)-(v), 

416.920(a)(4)(iv)-(v) (providing that, at steps four and five, the 

ALJ considers the claimant’s RFC).
9

With that regulatory framework in mind, we turn to the 

details of the case before us.

B. Factual and Procedural Background

1. Hess’s Social Security Application and

the ALJ’s Opinion

In August 2013, Hess applied for social security

disability benefits. After a hearing, the ALJ denied his claims. 

Her decision was based on her conclusion that Hess was not 

disabled within the meaning of the applicable regulations. In 

reaching that conclusion, she followed the five-step disability 

analysis just outlined. 

The ALJ’s reasoning and the findings she made are 

central to this case. Consequently, we describe the relevant 

portions of her opinion in detail. As to step one, however, it is 

sufficient to simply note that the ALJ determined Hess was not 

engaged in substantial gainful activity. 

At step two, the ALJ found that Hess had multiple

“severe impairments[.]” (App. at 30.) Specifically, she said

that Hess suffered from:

major depressive disorder single episode-mild, 

depressive disorder not otherwise specified, 

bipolar disorder, posttraumatic stress disorder, 

history of conduct disorder and impulse control 

disorder, personality disorder not otherwise 

specified with antisocial tendencies, 

osteoarthritis and degenerative joint disease of 

the right ankle, cervical degenerative disc 
10

disease, chronic pain disorder and history of 

opioid abuse and dependence.

(App. at 30-31 (citations omitted).)

3

 

At step three, the ALJ found that Hess’s mental 

impairments did not meet the standards for a “listed 

impairment[.]” (App. at 31.) In making that finding, she rated

Hess in the four areas of mental functional limitation.4 As to

“concentration, persistence or pace” – the area of functional 

limitation at issue here – she concluded that Hess had

“moderate difficulties.” (App. at 32.) She reasoned that, 

although a state psychological consultant had rated Hess as 

having “not ... more than mild limitation in this area of 

functioning,” that opinion was inconsistent with the record, 

including that Hess had been “diagnosed with mental health 

impairments, was in mental health treatment, and was 

prescribed mental health medications.” (App. at 32, 37.)

The ALJ clarified, however, that she did not consider 

Hess’s “moderate”-level difficulties in “concentration, 

persistence, or pace” to be so serious that he could not perform

simple tasks. In her words:

 

3 Only the impairments that affect Hess’s mental 

capabilities are at issue now.

4 As earlier noted, those are “[a]ctivities of daily living; 

social functioning; concentration, persistence, or pace; and 

episodes of decompensation.” 20 C.F.R. §§ 404.1520a(c)(3), 

416.920a(c)(3).
11

[Hess’s] self-reported activities of daily living, 

such as doing laundry, taking care of his personal 

needs, shopping, working, and paying bills 

(when he has money), ... are consistent with an 

individual who is able to perform simple, routine 

tasks. Furthermore, progress notes from treating 

and examining sources generally indicate no 

serious problems in this area of functioning, 

reporting that [Hess] could perform simple 

calculations, was fully oriented, and had intact 

remote/recent memory.

(App. at 32 (citations omitted).) The “self-reported activities 

of daily living,” as referenced by the ALJ, were described more 

fully as follows:

[Hess] reported he could care for his own 

personal needs and grooming, do laundry 

(although he needs help carrying the basket), 

clean, use public transportation, attend 

appointments, work part time, and go shopping 

in stores. [Hess] also pays bills (when he has 

money), counts change, and uses money orders. 

[Hess] testified that he works three days a week 

for five to six hours as a dishwasher, and he 

keeps track of the pantry items, checking for 

empty boxes and out of date food items.

(App. at 32 (citations omitted).)
12

At step four, the ALJ performed an RFC assessment.5 

She decided that Hess was “limited to jobs requiring 

understanding, remembering, and carrying out only simple 

instructions and making only simple work-related decisions[.]” 

(App. at 33-34.) In selecting that limitation, the ALJ engaged 

in a detailed examination of the record, from which she 

concluded that Hess’s mental difficulties were such that he was 

capable of performing simple tasks.

The ALJ first noted that Hess’s self-reported symptoms

could “reasonably be expected” to flow from his “medically 

determinable impairments[.]” (App. at 34.) Those symptoms 

included “trouble with concentration and completing 

tasks[,] .... trouble with written and verbal 

instructions[,] ... [inability to] handle stress very 

well[,] .... racing thoughts, a lot of scrambled thoughts, and 

trouble sleeping.” (App. at 34 (citations omitted).) The ALJ 

found, however, that his “statements concerning the intensity, 

persistence and limiting effects of these symptoms [were] not 

entirely consistent with the medical evidence and other 

evidence in the record[.]” (App. at 34-35.)

To support that finding, and to evaluate Hess’s

capabilities more generally, the ALJ analyzed each source of

relevant evidence. Specifically, she looked to mental status

examinations and reports, opinion evidence, Hess’s Global 

Assessment of Functioning (“GAF”) scores, his mental health

 

5 More precisely, as earlier noted (supra n.2), the ALJ 

viewed the RFC assessment as an intermediate step between 

steps three and four. As also noted, however, we will treat the 

RFC assessment as an element of step four.
13

treatment history, his activities of daily living, and a report by 

one of Hess’s longtime friends. 

Regarding the evidence from mental status

examinations and reports, the ALJ recognized that Hess had 

“numerous mental health diagnoses” and was “intermittently 

engaged in formal mental health treatment, including therapy 

and psychotropic medications.” (App. at 35 (citations 

omitted).) Nevertheless, she decided that the evidence showed 

that Hess was not seriously limited and he was capable of

functioning effectively. For example, an October 2013 mental 

status examination revealed that Hess “was not currently

taking any psychotropic medications”; “had fair hygiene and 

grooming, good eye contact, a pleasant and friendly attitude, a 

cooperative attitude, goal directed thought processes, no 

delusions or paranoia, appropriate affect, neutral mood, full 

orientation, adequate recent/remote memory, and adequate 

impulse control”; and “could perform simple mathematical 

calculations.” (App. at 36 (citation omitted).) Likewise, a 

February 2014 mental status examination showed that Hess 

had “appropriate dress and grooming, cooperative attitude, 

good eye contact, normal speech, goal directed thought 

processing, full orientation, and no suicidal and homicidal 

ideations.” (App. at 36 (citation omitted).) Furthermore, an 

August 2015 mental status examination demonstrated “neat 

and clean hygiene and grooming, a cooperative attitude, 

normal speech, full orientation, and normal memory.” (App. 

at 36 (citations omitted).) Additionally, the ALJ noted that 

records from a period of close observation that Hess had in 

2014 did “not contain any references to psychologically based 

problems[.]” (App. at 36.)
14

The ALJ acknowledged that a March 2015 mental status 

examination “allude[d] to an inability to work,” as well as “a 

depressed mood and poor insight/judgment[.]” (App. at 36, 

38.) But she assigned “[a]ny report of an inability to 

work ... little weight” because it was inconsistent with the 

record, the examination itself contained “no function by 

function opinion on th[at] issue,” and Hess’s inability to work 

was self-reported. (App. at 38.) Moreover, the examination 

was not all negative. It revealed “fair hygiene, fair eye contact, 

a cooperative attitude, normal speech, a calm affect, full 

orientation, and goal directed thought processing.” (App. at 

36.)

Moving on to the opinion evidence, the ALJ similarly 

found that it showed Hess’s mental difficulties left him capable 

of engaging in simple work. For example, she explained that 

Dr. Schwartz, a psychologist, opined that Hess “had ‘mild’ 

limitations in his ability to understand and remember simple 

instructions[,]” had “‘moderate’ limitations in his ability to 

carry out simple instructions[,]” “could perform simple,

unskilled work with additional restrictions in social and 

adaptive functioning[,]” and had “‘marked’ limitations in his 

ability to respond appropriately to usual work pressures or 

changes in a routine work setting.” (App. at 36-37 (citation 

omitted).) The ALJ assigned most of that opinion “great 

weight[,]” but she gave “little weight” to the conclusion that 

Hess had “marked” limitations because it wasinconsistent with 

the record generally and with a mental status examination

Dr. Schwartz himself had performed, and because it was

“based predominantly upon [Hess’s] subjective complaints[.]” 

(App. at 37.)
15

The ALJ also examined the opinion of a “treating 

mental health provider[,]” who said that Hess “could perform 

simple unskilled work but had ‘marked’ limitations in ... his 

ability consistently to concentrate, persist, and keep pace in a 

routine work setting.” (App. at 37 (citation omitted).) The ALJ 

again rejected the “marked” rating as inconsistent with the 

record. In doing so, she noted that Hess “was able to work 

part-time as a dishwasher and tolerate [a period of structured

supervision] without any reports of behavioral issues or 

problems completing tasks.” (App. at 37.) She further

highlighted the mental status examinations – which “regularly 

and routinely described [Hess] as cooperative and calm, having 

normal speech, full orientation, and logical thought 

processes” – and observed that the record did “not contain 

frequent references to fatigue, anhedonia, or staying in bed all 

day.” (App. at 37.)6

As to Hess’s GAF scores, the ALJ also deemed them 

not to be indicative of significant mental health difficulties. 

She acknowledged that Hess received “scores ranging from 

serious symptoms to moderate symptoms.” (App. at 36

(citations omitted).) But, she gave the GAF scores reflecting 

more serious symptoms “little weight” because they were “not 

consistent with the underlying mental status examinations[,]” 

Hess’s “own reported daily activities[,]” and “the record as [a] 

whole that did not reveal frequent or regular serious 

symptoms.” (App. at 37-38 (citations omitted).) Additionally, 

the ALJ explained that Hess’s “most recent 

 

6 The ALJ additionally considered the state 

psychological consultant’s opinion referenced in our

discussion of step three above, to which, as noted there, she 

gave little weight. 
16

scores ... indicat[ed] that [Hess] was experiencing moderate 

work-related mental health symptoms.” (App. at 36 (citations 

omitted).) She assigned the GAF scores reflecting less serious 

symptoms “great weight” because they were “more consistent 

with the record” and more accurately captured Hess’s “overall 

functioning.” (App. at 38 (citations omitted).) In doing so, the 

ALJ again cited the mental status examinations, which 

“revealed few serious symptoms,” the fact that Hess was “able 

to work part time as a dishwasher,” and records from close 

observation that “did not reveal any serious behavioral 

issues[.]” (App. at 38.)

Regarding Hess’s mental health treatment history, the 

ALJ reasoned that it neither supported the claimed severity 

level of Hess’s symptoms nor suggested that he was unable to 

perform simple tasks. She said that Hess was “not always 

compliant with treatment ... and ha[d] been discharged from 

treatment due to non-compliance”; “experienced short 

hospitalizations” in 2013 and 2015 “due in part to narcotics 

misuse and heroin addiction”; and “was not fully engaged in 

substance abuse treatment until” 2015. (App. at 36.) She 

noted, though, that Hess was then in a treatment program that 

began in August 2015, had been compliant with that treatment, 

and his symptoms had improved. 

Turning to Hess’s daily activities, the ALJ likewise

found that those activities were not suggestive of symptoms as 

serious as Hess claimed, and that they instead demonstrated an 

ability to engage in simple work. As part of the RFC analysis, 

the ALJ reiterated what she had earlier said at step three 

concerning Hess’s daily activities; namely, that Hess “takes 

care of his own personal needs and grooming, does 

laundry[,] ... cleans, uses public transportation, attends 
17

appointments, works part time, ... goes shopping in stores[,] 

.... pays bills (when he has money), counts change, ... uses 

money orders[,] .... [w]orks three days a week for five to six 

hours as a dishwasher, and ... keeps track of the pantry items 

checking for empty boxes and out of date food items.” (App. 

at 36-37 (citations omitted).)

Finally, the ALJ reviewed a report by a longtime friend 

of Hess’s stating that Hess “could cook daily, play computer 

games, pay bills, follow instructions good, pay attention for a 

long time, go shopping in stores, use public transportation, and 

take care of his own personal needs and grooming.” (App. at 

38 (citation omitted).) The ALJ assigned that report “partial 

weight insofar as it [was] consistent with the record as a 

whole[.]” (App. at 38.)

The ALJ ultimately concluded that she had discerned 

“appropriate limitations” to account for Hess’s “mental 

impairments” and that those “impairments and the restrictions 

caused by them would not prevent him from performing 

sedentary, unskilled work as defined ... in the [RFC].” (App. 

at 38-39.) She said that her RFC determination was based on 

her findings as to Hess’s functional limitations (e.g., as to 

“concentration, persistence, or pace”) and “all the evidence 

with consideration of the limitations and restrictions imposed 

by the combined effects of all [of Hess’s] medically

determinable impairments[.]” (App. at 34.) She particularly 

cited the mental status examinations, “the objective medical 

evidence ... [Hess’s] non-compliance [with treatment], the 

opinion evidence, and [Hess’s] activities of daily 

living.” (App. at 38.) 
18

At step five,7the ALJ found that there were “jobs ... in 

significant numbers in the national economy that [Hess could]

perform” and, thus, she concluded that Hess was not disabled. 

(App. at 39.) She based that conclusion on answers to

hypothetical questions she posed to a vocational expert about 

whether there were jobs “in the national economy for an 

individual with [Hess’s] age, education, work experience, and 

[RFC].” (App. at 40.) [App. at 40, 43-45.]

2. Hess’s Lawsuit and the District Court’s

Decision

After the ALJ denied his claim for disability benefits, 

Hess appealed to the Social Security Administration Appeals 

Council, which denied his request for review. Accordingly, the 

ALJ’s decision became the final decision of the Commissioner

of Social Security. Chandler v. Comm’r of Soc. Sec., 667 F.3d 

356, 359 (3d Cir. 2011). Hess then filed suit to challenge that

decision, pursuant to 42 U.S.C. § 405(g).

8

 

 

7 The ALJ moved on to step five because she found that 

Hess could not perform his “past relevant work[.]” (App. at 

39.) That finding was based on all of Hess’s limitations, 

including those not at issue here. 

8 Section 405(g) provides, in relevant part, “Any 

individual, after any final decision of the Commissioner of 

Social Security made after a hearing to which he was a party, 

irrespective of the amount in controversy, may obtain a review 

of such decision by a civil action commenced within sixty days 

after the mailing to him of notice of such decision or within 

such further time as the Commissioner of Social Security may 

allow.” 42 U.S.C. § 405(g).
19

The case was referred to a Magistrate Judge, who wrote 

a Report and Recommendation (“R&R”) in Hess’s favor.

According to the Magistrate Judge, the ALJ’s decision was 

inadequate because she failed to “include in her RFC 

assessment, or in any hypothetical relied upon, her finding that 

[Hess] has [a] moderate limitation in maintaining 

concentration, persistence or pace” and “did not otherwise 

account for this finding in her RFC assessment or in any 

hypothetical question.” (App. at 19.) That, the Magistrate 

Judge said, ran afoul of our decision in Ramirez v. Barnhart, 

372 F.3d 546 (3d Cir. 2004), which the Judge understood to 

hold “that, when an ALJ finds that a claimant has [a moderate] 

degree of limitation in maintaining concentration, persistence 

or pace, she must include this limitation in any hypothetical 

question posed to a [vocational expert] that the ALJ wishes to 

rely upon” and “that this degree of limitation must be reflected 

in the RFC assessment.” (App. at 19.) The Magistrate Judge

otherwise rejected all of Hess’s challenges to the ALJ’s 

decision. 

The District Court approved and adopted the R&R. In 

doing so, it made some additional comments about the case. 

The Court explained that Ramirez “reiterated that a 

hypothetical must account for all of an applicant’s 

impairments” and “disapproved of a hypothetical restricting an

applicant’s potential work to ‘simple tasks’ when an ALJ also 

finds that the applicant ‘often’ has deficiencies in 

concentration, persistence, or pace.” (App. at 7 n.1 (citation 

omitted).) It observed that, here, “the ALJ did not incorporate 

her finding of a ‘moderate’ limitation in concentration, 

persistence, or pace in a hypothetical she posed to the 

vocational expert” but rather “asked the vocational expert if a 
20

person ‘limited to jobs requiring understanding, remembering, 

and carrying out only simple instructions making only simple, 

work related decisions ...’ could perform a job in the national 

economy.” (App. at 7 n.1.) The District Court concluded, in 

line with the Magistrate Judge’s R&R, that the ALJ had

violated Ramirez and the case must be remanded for further 

administrative proceedings.

9

 

The government timely appealed. 

II. DISCUSSION10

The somewhat complicated question on appeal is 

whether the ALJ’s limitation of Hess “to jobs requiring 

understanding, remembering, and carrying out only simple 

instructions and making only simple work-related decisions[,]”

as noted in the RFC determination at step four of the disability 

 

9 The District Court also noted that “three unreported 

Third Circuit cases have held that a hypothetical restricting an 

applicant to simple tasks is sufficient even where an ALJ has 

determined that the applicant possesses moderate difficulties in 

concentration, persistent [sic] or pace[,]” but it determined

those decisions to be inconsistent with Ramirez. (App. at 7 

n.1.)

10 The District Court had jurisdiction under 42 U.S.C. 

§ 405(g). We have appellate jurisdiction pursuant to 28 U.S.C. 

§ 1291. “We exercise plenary review over legal conclusions 

reached by the Commissioner[,]” and “[w]e review the 

Commissioner’s factual findings for ‘substantial evidence[.]’” 

Chandler, 667 F.3d at 359 (citation omitted).
21

analysis and in the resulting hypothetical questions to the 

vocational expert at step five, was permissible in light of her

finding, at step three, of “moderate difficulties” in 

“concentration, persistence or pace[.]”

11 (App. at 32-34.) The 

government argues that that limitation was acceptable because 

the ALJ offered a “valid explanation” for it. Hess responds

that such a limitation is forbidden by Ramirez, after a finding 

of “moderate” difficulties in “concentration, persistence, or 

pace.” The government’s position is correct, and the District 

Court should not have disturbed the ALJ’s decision.

A. The Functional Limitation Findings Do Not 

Require Particular Language to Appear in 

the Statement of the Limitation

The parties argue over whether an ALJ must use 

specific words in stating a limitation that will be employed at 

steps four and five of the disability analysis, based on the

functional limitation findings at steps two and three, such as a 

finding of “moderate” difficulties in “concentration, 

persistence, or pace.” The government says that an ALJ need 

not do so. Hess responds that “the hypothetical posed to the 

vocational [expert] and the ALJ’s RFC assessment must 

incorporate all of the claimant’s limitations supported by the 

 

11 Here, the ALJ’s statement of Hess’s limitation was 

the same in the RFC and in the hypothetical questions. That is 

frequently the case. Cf. 20 C.F.R. §§ 404.1520(a)(4)(v), 

416.920(a)(4)(v) (stating that an ALJ considers the claimant’s 

RFC at step five). In this opinion, therefore, we often refer to 

the limitation language in the RFC and hypothetical questions 

collectively as the ALJ’s stated “limitation.”
22

medical record.” (Answering Br. at 6.) But the parties are

talking past each other, and both are correct.

It is true, as the government contends, that no

incantations are required at steps four and five simply because 

a particular finding has been made at steps two and three. 

Those portions of the disability analysis serve distinct purposes 

and may be expressed in different ways. When mental health 

is at issue, the functional limitation categories are “used to rate 

the severity of mental impairment(s)[.]” SSR 96-8P, 1996 WL 

374184, at *4 (July 2, 1996). While obviously related to the 

limitation findings, the RFC is a determination of “the most [a 

claimant] can still do despite [his] limitations” “based on all 

the relevant evidence in [the] case record.” 20 C.F.R. 

§§ 404.1545(a)(1), 416.945(a)(1); SSR 96-8P, at *2. It

“requires a more detailed assessment [of the areas of functional 

limitation] by itemizing various functions contained in the

broad [functional limitation] categories[.]” SSR 96-8P, at *4. 

And, unlike the findings at steps two and three, the RFC “must

be expressed in terms of work-related functions[,]” such as by 

describing the claimant’s “abilities to: understand, carry out, 

and remember instructions; use judgment in making workrelated decisions; respond appropriately to supervision, coworkers and work situations; and deal with changes in a routine 

work setting.” Id. at *6. In short, the findings at steps two and 

three will not necessarily translate to the language used at steps 

four and five.

Additionally, and perhaps more importantly, social 

security regulations permit, and indeed require, an ALJ to offer 

“a narrative discussion describing how the evidence supports 

each” limitation at step four of the disability analysis. Id. at 

*7. That suggests a wide range of limitation language is 
23

permissible, regardless of what the ALJ found at earlier steps 

of the analysis, so long as the chosen limitation language is 

explained.

Nevertheless, as Hess maintains, the statement of a

limitation does need to reflect the claimant’s particular 

impairments, including those embodied in the functional 

limitation findings. “In assessing RFC, the adjudicator must 

consider limitations and restrictions imposed by all of an 

individual’s impairments, even those that are not ‘severe.’” Id.

at *5; see also 20 C.F.R. §§ 404.1545(c), 416.945(c) 

(explaining that a mental RFC assessment must begin with an 

examination of “the nature and extent of [the claimant’s] 

mental limitations and restrictions”). And, again, although 

steps two and three differ from steps four and five, the 

functional limitation findings are plainly relevant to an ALJ’s 

statement of the claimant’s limitation at the later steps because 

they involve the claimant’s actual impairments. Cf. SSR 96-

8P, at *4 (“The mental RFC assessment used at steps 4 and 5 

of the sequential evaluation process requires a more detailed 

assessment [of the areas of functional limitation] by itemizing 

various functions contained in the broad [functional limitation] 

categories[.]”).

Our case law supports the conclusion that the findings 

at steps two and three are important to the ALJ’s statement of 

a claimant’s limitation but do not require the use of any 

particular language. In Ramirez, we said:

We cannot concur in the Commissioner’s 

[position that the functional limitation findings 

are relevant only at steps two and three of the 

disability analysis]. While [the pertinent 
24

regulation] does state that the [functional 

limitation] findings are “not an RFC assessment” 

and that step four requires a “more detailed 

assessment,” it does not follow that the 

[functional limitation findings] play no role in 

steps four and five[.]

372 F.3d at 555. We clarified, however, that those findings

need only be “adequately conveyed” in the ALJ’s statement of 

the limitation, not recited verbatim. Compare id. at 552 n.2 

(observing that the claimant was arguing “that all of a 

claimant’s limitations must be adequately conveyed in the 

hypothetical[,]” not, as the government suggested, that 

functional limitation findings must be stated “verbatim in the 

hypothetical”), with id. at 554 (“[The ALJ’s chosen] 

limitations do not adequately convey all of [the claimant’s]

limitations.” (emphasis added)).12

In short, the functional limitation findings do not dictate 

the terms of the ALJ’s statement of the claimant’s limitation in 

the final analytical steps. But those findings are relevant to that

statement of the limitation, which must be sufficient to reflect 

all of a claimant’s impairments.

 

12 We did say in Ramirez that “we hold that the ALJ’s 

hypothetical did not adequately capture and recite all of [the 

claimant’s] mental impairments and the limitations caused by 

those impairments.” 372 F.3d at 555 (emphasis added). As 

demonstrated by the quoted language above, however, in the 

context of our opinion, “capture and recite” meant “adequately 

convey.”
25

B. A “Simple Tasks” Limitation Is Appropriate 

After a Finding of “Moderate” Difficulties in 

“Concentration, Persistence, or Pace,” if a 

“Valid Explanation” Is Given

The next issue is whether a “simple tasks” limitation,

like the one stated by the ALJ here, can be said to fairly reflect 

a claimant’s impairments when that claimant has been found 

to face “moderate” difficulties in “concentration, persistence, 

or pace.” The government argues that such a statement of the 

limitation is acceptable, if an ALJ provides a “valid 

explanation.” Hess responds that, under Ramirez, “a limitation 

to simple instructions and simple work-related decisions does 

not reflect a claimant’s moderate restrictions in concentration, 

persistence, or pace.” (Answering Br. at 7-8.) We agree with 

the government.

1. The ALJ Chose a “Simple Tasks” 

Limitation

Before reaching the merits of this issue, we must 

address one preliminary matter. Both parties treat the 

limitation here – “to jobs requiring understanding, 

remembering, and carrying out only simple instructions and 

making only simple work-related decisions[,]” (App. at 33-

34) – as equivalent to a limitation to “simple tasks.” That is 

important because the case law they rely upon generally 

involves so-called “simple tasks” limitations.

We agree with their interpretation of the ALJ’s framing

of the limitation. A limitation to “simple tasks” is

fundamentally the same as one “to jobs requiring 

understanding, remembering, and carrying out only simple 
26

instructions and making only simple work-related decisions[.]” 

(App. at 33-34;) see Davis v. Berryhill, 743 F. App’x 846, 850 

(9th Cir. 2018) (treating “understanding, remembering, and 

carrying out only simple instructions” as equivalent to “simple 

tasks”); Richards v. Colvin, 640 F. App’x 786, 790 (10th Cir. 

2016) (referring to a limitation “to understanding, 

remembering, and carrying out only simple instructions and 

making only simple work-related decisions” as a “simple-work 

limitation[]”). Indeed, both formulations – the ALJ’s and the 

more concise phrase “simple tasks” – relate to mental abilities 

necessary to perform “unskilled work.” See 20 C.F.R. 

§§ 404.1568(a), 416.968(a) (“Unskilled work is work which 

needs little or no judgment to do simple duties that can be 

learned on the job in a short period of time.”); SSR 96-9P, 1996 

WL 374185, at *9 (July 2, 1996) (concluding that “unskilled 

work” requires “[u]nderstanding, remembering, and carrying 

out simple instructions” and “[m]aking ... simple workrelated decisions”); cf. Richards, 640 F. App’x at 790 (treating 

“simple-work limitations” as similar to “unskilled work” 

limitations). So the parties’ reliance on case law related to

“simple tasks” is appropriate and helpful.

2. Only a “Valid Explanation” Is 

Required

Turning to the merits, the government is correct that, as 

long as the ALJ offers a “valid explanation,” a “simple tasks” 

limitation is permitted after a finding that a claimant has

“moderate” difficulties in “concentration, persistence, or 

pace.” That conclusion flows directly from our decision in 

Ramirez.
27

In Ramirez, as Hess notes, we disapproved of a “simple 

tasks” limitation after an ALJ had found that a claimant 

suffered from deficiencies in “concentration, persistence, or 

pace” that arose “often[.]” 372 F.3d at 554-55. We said that 

“a requirement that a job be limited to one to two step 

tasks ... does not adequately encompass a finding that [the 

claimant] ‘often’ has ‘deficiencies in concentration, 

persistence, or pace[.]’” Id. at 554 (citation omitted). We were 

specifically concerned that such a limitation would “not take 

into account deficiencies in pace” because “[m]any employers 

require a certain output level from their employees over a given 

amount of time, and an individual with deficiencies in pace 

might be able to perform simple tasks, but not over an extended 

period of time.” Id. On the record then before us, it seemed 

likely that, if the claimant often had “deficiencies in pace and 

this had been included in the hypothetical,” the vocational 

expert would have “changed her answer as to whether there 

were jobs in the local or national economy that [the claimant] 

could perform[,]” given that “the vocational expert testified 

that each of the jobs suitable for [the claimant] ... would have 

daily production quotas and that [the claimant] would have to 

maintain a certain degree of pace to maintain those jobs.” Id.

In light of all that, we concluded that “[t]his omission from the 

hypothetical runs afoul of our directive in [Chrupcala v. 

Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987),] that a 

hypothetical question posed to a vocational expert must reflect

all of a claimant’s impairments,” and conflicts with “our 

statement in [Burns v. Barnhart, 312 F.3d 113, 122 (3d Cir. 

2002),] that ‘great specificity’ is required when an ALJ 

incorporates a claimant’s mental or physical limitations into a 

hypothetical.” Id. at 554-55 (citations omitted).
28

We immediately noted, however, that ALJs are not 

forbidden from using “simple tasks” limitations. An ALJ may 

frame a limitation in terms of “simple tasks” if – based on the 

facts of the case – the ALJ provides a “valid explanation” for 

doing so:

Of course, [we said,] there may be a valid 

explanation for this omission from the ALJ’s 

hypothetical. For example, the ALJ may have 

concluded that the deficiency in pace was so 

minimal or negligible that, even though [the 

claimant] “often” suffered from this deficiency, 

it would not limit her ability to perform simple 

tasks under a production quota.

Id. at 555 (emphasis added).

That we did not adopt a categorical rule regarding

“simple tasks” limitations is confirmed by our discussion in

Ramirez of case law from other circuits. Specifically, we 

examined four decisions, two of which held that an ALJ’s 

limitation statement was adequate despite a finding that the 

claimant had deficiencies in “concentration, persistence, or 

pace,” id. at 552-53 (citing Howard v. Massanari, 255 F.3d 

577, 581-82 (8th Cir. 2001); Smith v. Halter, 307 F.3d 377, 

378-79 (6th Cir. 2001)), and two of which held that the 

statement of limitation was insufficient in light of such a 

finding, id. at 553-54 (citing Kasarsky v. Barnhart, 335 F.3d 

539, 544 (7th Cir. 2003); Newton v. Chater, 92 F.3d 688, 694-

95 (8th Cir. 1996)). We emphasized that the outcome of each 

case turned on its particular facts. Id. at 552-54. That analysis 

animated our adoption of a fact-specific “valid explanation” 

approach.
29

In sum, Ramirez did not hold that there is any

categorical prohibition against using a “simple tasks”

limitation after an ALJ has found that a claimant “often” faces

difficulties in “concentration, persistence, or pace.” Rather, a 

“simple tasks” limitation is acceptable after such a finding, as

long as the ALJ offers a valid explanation for it.

Ramirez’s “valid explanation” rule remains the law in 

our circuit.13 That is true even though Ramirez dealt with a 

finding of difficulties in “concentration, persistence, or pace” 

that arose “often[,]” id. at 554-55, and here, due to a change in 

the regulatory rating scale, the ALJ expressed the limitation in 

different terms, saying that Hess had “moderate difficulties” in 

“concentration, persistence or pace,”

14 (App. at 32.)

 

13 Our sister circuits have also adopted fact-specific 

approaches to whether an ALJ’s chosen limitation is 

acceptable notwithstanding a finding of difficulties in 

“concentration, persistence, or pace.” E.g., Scott v. Berryhill, 

855 F.3d 853, 855, 858 (8th Cir. 2017); Vigil v. Colvin, 805 

F.3d 1199, 1203-04 (10th Cir. 2015); Mascio v. Colvin, 780 

F.3d 632, 638 (4th Cir. 2015); Winschel v. Comm’r of Soc. Sec., 

631 F.3d 1176, 1180-81 (11th Cir. 2011); Stubbs-Danielson v. 

Astrue, 539 F.3d 1169, 1173-75 (9th Cir. 2008).

14 The regulations previously assessed “concentration, 

persistence, or pace” on a scale of “never, seldom, often, 

frequent, and constant.” Ramirez, 372 F.3d at 551. The 

regulations at issue here assess that functional area using a 

scale of “[n]one, mild, moderate, marked, and extreme.” 20 

C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4).
30

Regardless of the rating scale, “simple tasks” limitations have 

a relationship to abilities in “concentration, persistence, or 

pace” that makes a valid explanation necessary after a finding 

in that functional area.

The relationship between “simple tasks” limitations and 

“concentration, persistence, or pace” is a close one. Indeed, 

such limitations directly encompass and anticipate a minimal 

level of ability in that functional area. Under the Social 

Security Administration’s Program Operations Manual System 

(“POMS”),15 “[u]nderstanding, carrying out, and remembering 

simple instructions” includes “[t]he ability to maintain 

concentration and attention for extended periods (the 

approximately 2-hour segments between arrival and first 

break, lunch, second break, and departure)[;] [t]he ability to 

perform activities within a schedule ... [;] [t]he ability to 

sustain an ordinary routine without special 

supervision[;] ... [and] [t]he ability to complete a normal 

 

15 We have characterized the POMS as “‘the publicly 

available operating instructions for processing Social Security 

claims.’ The Supreme Court has stated that ‘[w]hile these 

administrative interpretations are not products of formal 

rulemaking, they nevertheless warrant respect.’” Kelley v. 

Comm’r of Soc. Sec., 566 F.3d 347, 350 n.7 (3d Cir. 2009) 

(alteration in original) (citations omitted). The POMS is 

especially entitled to respect in the present context, where the 

issue is whether the limitation chosen by the ALJ captured the 

claimant’s capabilities and conveyed them to the vocational 

expert, given that the POMS establishes the generally 

understood meaning of terms within the social security

regulatory framework.
31

workday and workweek without interruptions from 

psychologically based symptoms and to perform at a consistent 

pace without an unreasonable number and length of rest 

periods.” POMS DI 25020.010(B)(2)(a). In short, 

“concentration, persistence, or pace” is tightly linked to the 

capacity to complete “simple tasks.”

Nevertheless, a “simple tasks” limitation alone does not 

account for the extent of a claimant’s difficulties in 

“concentration, persistence, or pace.” Without explanation, 

such a limitation does not warrant a conclusion about whether 

a claimant’s difficulties in “concentration, persistence, or 

pace” are so serious that he cannot satisfy the functional 

requirements of “simple tasks.” An explanation is thus

important, regardless of the particular scale used for rating

“concentration, persistence, or pace.” It must be given whether 

difficulties in that area are said to arise “often” or are called 

“moderate” in severity.16

Based on their understanding of the import of Ramirez,

the Magistrate Judge and the District Court concluded that the 

ALJ erred because she did not “explicitly include” her 

functional limitation finding as to “concentration, persistence

or pace” in the RFC assessment or hypothetical questions, and 

that a “simple tasks” limitation was inadequate to address 

Hess’s circumstances. (App. at 19.) In light of that conclusion, 

neither the R&R nor the District Court’s opinion discussed the 

 

16 It is possible that the change in regulatory scale for 

measuring difficulties in “concentration, persistence, or pace” 

was more than a shift in the nomenclature. But we need not 

decide that issue today, given that our “valid explanation” 

holding applies in any event.
32

sufficiency of the analysis that led to the ALJ’s “simple tasks” 

limitation. That is problematic, for, as we have noted here, it 

is essential to assess whether a valid explanation has been 

given for an ALJ’s statement of a claimant’s limitation to 

“simple tasks.”

C. The ALJ Offered a “Valid Explanation”

The final question, then, is whether the ALJ in this case 

offered a valid explanation.

17

 The government argues that the 

ALJ did so by analyzing Hess’s difficulties in “concentration,

persistence, or pace” and concluding that they were not so 

serious that Hess could not perform simple tasks. Hess’s only 

response is that “the ALJ failed to set forth a supported 

rationale for [her] RFC findings.” (Answering Br. at 5.) He

does not assert that the ALJ mischaracterized the record, only 

that her analysis is flawed.

Having evaluated that analysis, we are persuaded that 

the ALJ did offer a valid explanation for her “simple tasks” 

limitation. As indicated by our detailed description of her 

 

17 As just stated, the District Court did not consider that 

issue. “[W]e ordinarily do not consider issues not addressed 

by the district court in the first instance.” Howard Hess Dental 

Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 253 n.6 (3d Cir. 

2010). But, “[w]e may decide a question not addressed by the 

District Court when ‘the record has been sufficiently 

developed for us to resolve [the] legal issue.’” Chehazeh v. 

Att’y Gen., 666 F.3d 118, 140 (3d Cir. 2012) (second alteration 

in original) (citation omitted). Here, the record as to the 

adequacy of the ALJ’s explanation has been sufficiently 

developed.
33

opinion, the ALJ explained at length and with sound reasoning

why Hess’s “moderate” difficulties in “concentration, 

persistence, or pace” were not so significant that Hess was

incapable of performing “simple tasks.” For example, coupled 

with her finding that Hess had “moderate difficulties” in 

“concentration, persistence or pace,” the ALJ explained that 

Hess’s “self-reported activities of daily living, such as doing 

laundry, taking care of his personal needs, shopping, working, 

and paying bills (when he has money), ... are consistent with 

an individual who is able to perform simple, routine tasks.” 

(App. at 32.) In the same discussion, the ALJ also observed 

that “progress notes from treating and examining sources 

generally indicate no serious problems in this area of 

functioning, reporting that [Hess] could perform simple 

calculations, was fully oriented, and had intact remote/recent 

memory.” (App. at 32 (citations omitted).)

Likewise, in her meticulous analysis of the record at 

step four of the disability analysis, the ALJ highlighted, among 

other things, the following: mental status examinations and 

reports that revealed that Hess could function effectively; 

opinion evidence showing that Hess could do simple work; and 

Hess’s activities of daily living, which demonstrated that he is

capable of engaging in a diverse array of “simple tasks,” such 

as “work[ing] three days a week for five to six hours as a 

dishwasher[.]” (App. at 37.) She additionally noted that there 

were no “reports of behavioral issues or problems completing 

tasks” during a significant period of close observation, and that 

the record “did not reveal frequent or regular serious 

symptoms.” (App. at 37-38 (citations omitted).) The ALJ’s 

review of the record, moreover, led her to give little weight to 

assertions that Hess had serious mental difficulties and to credit

evidence that Hess could perform simple work. After all of 
34

that, the ALJ explained that “appropriate limitations” were 

imposed to reflect Hess’s mental impairments and that Hess’s 

“impairments and the restrictions caused by them would not 

prevent him from performing sedentary, unskilled work as 

defined ... in the [RFC].” (App. at 38-39.)

We think the ALJ’s detailed explanation was 

sufficient.

18

 Indeed, the record evidence the ALJ cited in 

reasoning that a “simple tasks” limitation was appropriate is 

comparable to, or even stronger than, evidence that certain of 

our sister circuits have found to support similar limitations.

19

 

18 It gives us some pause that the ALJ did not address in 

her opinion her follow-up colloquy with the vocational expert, 

during which the ALJ posed questions that could bear on 

limitations in “concentration, persistence, or pace” and that the 

vocational expert admitted would prevent full-time 

competitive employment. It would likely avoid unnecessary 

litigation if ALJs, under these circumstances, incorporated 

seemingly relevant responses from vocational experts such as 

those into their disability analyses. But, the follow-up colloquy 

does not appear to have affected the ALJ’s conclusions or 

decision. (See App. at 40 (“Based on the testimony of the 

vocational expert, the undersigned concludes that, considering 

[Hess’s] age, education, work experience, and [RFC], [Hess]

is capable of making a successful adjustment to other work that 

exists in significant numbers in the national economy.”).) And, 

no one contends that the ALJ’s opinion was deficient for not 

explicitly mentioning that colloquy. 

19 See Scott, 855 F.3d at 855, 858 (holding that a 

hypothetical question that “provided for medium, unskilled 

work involving ‘personal contact that is incidental to the work 
35

In sum, the ALJ’s limitation “to jobs requiring 

understanding, remembering, and carrying out only simple 

instructions and making only simple work-related decisions[,]” 

(App. at 33-34,) was supported by a “valid explanation” and so 

 

performed,’ requiring ‘little independent judgment ... [and] 

simple, direct, and ... very brief’ supervision” was sufficient to 

account for a claimant’s “moderate difficulties in 

concentration, persistence, or pace” where the ALJ 

acknowledged the claimant’s “reading, writing, and math 

difficulties, ... his history of special education and failure to 

finish high school[,]” his self-described “reduced attention 

span,” and “that consultative examiners noted a slow pace[,]” 

but also explained that the claimant “‘retains the focus 

necessary to watch three hours of television per day[,]’ ... does 

not require reminders[,]” and “demonstrated good 

concentration and persistence during consultative 

examinations” (first alteration in original)); Vigil, 805 F.3d at 

1203-04 (holding that “the ALJ accounted for [a claimant’s] 

moderate concentration, persistence, and pace problems in his 

RFC assessment by limiting him to unskilled work” because, 

despite finding “some evidence indicating that [the claimant] 

had some problems with concentration, persistence, and pace 

‘such that [he] could not be expected to perform complex 

tasks[,]’” the ALJ also “found that ‘the findings of a normal 

ability to recall items on immediate recall, and an ability to 

spell words forward, as well as finding of normal thought 

processes, indicate[d] that [the claimant] retain[ed] enough 

memory and concentration to perform at least simple tasks’” 

(third, fifth, and seventh alterations in original) (citations 

omitted)).
36

was appropriate. The administrative decision should therefore 

have been upheld.

III. CONCLUSION

For the foregoing reasons, we will vacate the judgment 

of the District Court and remand with instructions to enter 

judgment for the government.